United States v. McCullough

• Decision Date: 15 March 2017
• Docket Number: No. 15-15430,15-15430
• Citation: 851 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Roger Lardrell MCCULLOUGH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

851 F.3d 1194

UNITED STATES of America, Plaintiff–Appellee,

v.Roger Lardrell MCCULLOUGH, Defendant–Appellant.

No. 15-15430

United States Court of Appeals, Eleventh Circuit.

March 15, 2017

Sandra J. Stewart, George L. Beck, Jr., Kevin P. Davidson, John J. Geer, III, Assistant U.S. Attorney, U.S. Attorney's Office, Montgomery, AL, for Plaintiff–Appellee.

Paul Roy Cooper, Cooper & Cooper, Montgomery, AL, for Defendant–Appellant.

Before WILLIAM PRYOR, JORDAN, and RIPPLE,^* Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to determine whether the bar against reassigning a case to a new judge "[a]fter a verdict or finding of guilty" unless the "judge who presided at trial " is absent or disabled, Fed. R. Crim. P. 25(b)(1) (emphasis added), applies where a defendant pleaded guilty. After a police officer stopped Roger McCullough for driving with a partially obscured license plate, the officer arrested McCullough for possession of marijuana. McCullough pleaded guilty to several drug and firearm charges, and the district court reassigned the case to a new judge for sentencing. McCullough argues that the reassignment was unlawful because the judge initially assigned to the case was neither absent nor disabled. See Fed. R. Crim. P. 25(b)(1). But the text of Rule 25 makes clear that the rule does not apply where a defendant pleaded guilty. We also reject McCullough's arguments that the traffic stop was unlawful, that the district court should have reassigned the case back to the initial judge, and that the district court committed procedural and substantive error when it sentenced McCullough. We affirm.

I. BACKGROUND

Roger McCullough drove along the highway one evening in his late father's truck when a police officer stationed on the side of the road used a machine to read the license plate on the truck. The machine interprets alphanumeric symbols on license plates and constructs an image of the plate. It then cross-references those symbols against a database to search for, among other things, stolen vehicles and Amber alerts. The truck was outfitted with an Alabama license plate that read "God Bless America." A bracket in the shape of an eagle with outstretched wings obscured parts of the license plate, including the invocation and the state of issue.

Alabama law provides that "[e]very motor vehicle operator ... shall at all times keep attached and plainly visible on the rear end of such motor vehicle a license tag or license plate." Ala. Code § 32–6–51 (emphasis added). The officer turned on his lights to stop McCullough because the officer believed McCullough had violated this provision by driving with the eagle bracket. McCullough refused to stop for several miles. When McCullough finally did stop, the officer detained McCullough for safety reasons. The officer also wrote McCullough tickets for failing to have a plainly visible license plate and for failing to yield to an emergency vehicle.

McCullough's situation worsened when the officer smelled marijuana wafting from the truck. The officer searched the truck and discovered $8,335 and a substance the officer believed was marijuana. The officer arrested McCullough, searched him, and seized from his person more than $4,000 and a key to a hotel room. Police obtained a warrant to search the hotel room. The room contained several plastic bags, more than $1,000, three gallon-size bags filled with what the police believed was marijuana, weighing scales, a marijuana grinder, multiple phones, and a handgun.

When McCullough was arrested, he was already on supervised release from a previous conviction. His criminal history included three convictions for possession of controlled substances—twice for cocaine, once for marijuana—one conviction for possession with the intent to distribute marijuana, and several assaults. For violating his supervised release, McCullough was sentenced after his arrest to four months of time served. McCullough was given a new term of supervised release, which included twenty months of residence at Fellowship House in Birmingham, obtaining employment, and participating in a substance abuse program.

Soon after, a grand jury returned an indictment against McCullough for possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). McCullough moved to suppress the evidence on the ground that the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law required only that alphanumeric symbols be visible, not the full license plate. The district court denied the motion because it determined that a reasonable officer could have believed that McCullough violated Alabama law and that the arrest and search were justified. McCullough then pleaded guilty to each count before a magistrate judge.

Before sentencing, the probation officer calculated a guideline range of 262–327 months that accounted for, among other factors, McCullough's status as a career offender with a career history category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm. McCullough objected and filed a motion for a downward variance that requested a sentence between 117 and 131 months. McCullough argued that his case was similar to Pepper v. United States , where the Supreme Court permitted a district court to consider post-sentencing rehabilitation after an appellate court had vacated and remanded the defendant's initial sentence. 562 U.S. 476, 490, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). McCullough argued that the district court should take into account that, among other things, he had moved into the Fellowship House and had obtained employment since his most recent release from incarceration. He also maintained that marijuana is less serious relative to other controlled substances, so the guideline range was disproportionate to his crime.

The district court reassigned the case to a new judge for sentencing. McCullough argued that the reassignment violated Federal Rule of Criminal Procedure 25, which provides that a district court may reassign a matter to a new judge if "[a]fter a verdict or finding of guilty, ... the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability." Rule 25(b)(1). He also moved the district court to reassign the case back to the initial judge, whom he contended was more familiar with the facts.

At the sentencing hearing, McCullough notified the district court that the motion for reassignment remained pending. The district court stated that it had not seen the motion. After reading the motion, the district court ruled that Rule 25 did not apply to defendants who, like McCullough, pleaded guilty. The district court also expressed surprise that a magistrate judge, not a district judge, had accepted the plea. The district court stated that it had read and considered all the letters McCullough submitted. Although the district court had not read Pepper , both parties stated the holding and made arguments as to its application. The district court reviewed each letter McCullough submitted and determined that the letters provided some evidence of lifestyle change but did not warrant a downward variance in the light of McCullough's significant criminal history. Instead, the district court sentenced McCullough to 294 months, the midpoint of his guideline range.

II. STANDARDS OF REVIEW

A few different standards govern our review of this appeal. We review interpretations of rules of federal procedure de novo , United States v. Lopez , 562 F.3d 1309, 1311 (11th Cir. 2009), but we review the decision of a judge to "perform sentencing duties in a case he did not try" for abuse of discretion, see United States v. McGuinness , 769 F.2d 695, 696 (11th Cir. 1985). When reviewing the denial of a motion to suppress, which presents a mixed question of fact and law, we review factual findings for clear error and legal determinations de novo . United States v. Gibson , 708 F.3d 1256, 1274 (11th Cir. 2013). We also view the evidence in the light most favorable to the government, as the prevailing party. See United States v. Capers , 708 F.3d 1286, 1295–96 (11th Cir. 2013). We review sentencing decisions for abuse of discretion. United States v. Irey , 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).

III. DISCUSSION

We divide our discussion in five parts. We first explain that the district court correctly ruled that Rule 25 does not apply to defendants who plead guilty. Second, we explain that the district court did not abuse its discretion when it refused to return the case to the initial judge. Third, we explain that the district court correctly denied the motion to suppress the evidence because the traffic stop was lawful. Fourth, we explain that McCullough's sentence is reasonable. Fifth, we explain that McCullough waived the argument that one of his underlying convictions was insufficient to justify his status as a career offender.

A. Sentencing Reassignment

Federal Rule of Criminal Procedure 25 governs reassignment of cases where a "trial" has occurred. The relevant provision applies where "[a]fter a verdict or finding of guilty ... the judge who presided at trial cannot perform [the court's] duties." Rule 25(b)(1) (emphasis added). The rule limits reassignment in those circumstances to instances of judicial "absence, death, sickness, or other disability." Id.

McCullough argues that the rule applies to defendants like him who pleaded guilty because the district court conducts a "mini-bench trial" when accepting a guilty plea, but we disagree. Rule 25 does not apply because McCullough never went to trial. McCullough's guilty plea obviated the need for a trial, so the district court had the authority to reassign his case. See 28 U.S.C. § 137 (...